Justices weigh state’s care of Pohakuloa Training Area on Hawaii island

Did the state Department of Land and Natural Resources fail in its duty to protect public trust land at Pohakuloa Training Area on Hawaii island?

That’s the question the Hawaii Supreme Court will ponder following Thursday’s oral arguments before the five justices of the state’s highest court.

The state appealed a ruling last year by Oahu Circuit Judge Gary Chang, who said DLNR failed to properly care for the nearly 23,000 acres of trust land it has leased to the Army for $1 since 1964 to conduct live-fire training exercises.

Chang ordered the state to provide a written stewardship plan, regular monitoring and inspections, inspection reports with recommendations and procedures for addressing violations and debris removal plans.

The judge also prohibited the department from entering into a new lease until the state Board of Land and Natural Resources issues a written determination that the Army is complying with the existing 65-year lease that expires in 10 years.

Ewan C. Raynor, Hawaii’s deputy solicitor general, told the high court Thursday that Chang overstepped his authority. He said the state court’s oversight of the case is limited by the fact the U.S. government isn’t one of the parties in the case.

The fact is, he said, the Army gets to decide whether there is a breach of duty under the lease. Raynor suggested the case belonged in federal court.

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But several justices questioned Raynor’s arguments, and so did David Kimo Frankel, attorney for the plaintiffs, and Hawaiian cultural practitioners Clarence “Ku” Ching and Mary Maxine Kahaulelio.

Frankel argued that the judge merely ordered the state to come up with a plan for the inspections, and the state is the one ultimately responsible for ensuring that trust lands are properly cared for.

“DLNR breached this duty when they made no effort to ensure that the Army is complying with the terms of the lease,” said Frankel, a former Native Hawaiian Legal Corp. attorney.

The department conducted only two inspections — one in 1984 and another a decade later — and it was unclear what, if anything, was checked during the second one, according to Chang’s ruling last year.

“DLNR had good reason to conduct inspections,” Frankel said Thursday. “It knows of the military’s poor track record of cleaning up the mess left after training exercises on state land — at Waikane, at Makua, at Kahoolawe.”

Internal DLNR memos from 2011 and 2013, he said, indicated that officials knew there was a likelihood unexploded ordnance was embedded in public trust ceded land at Pohakuloa.

“And yet the department did nothing. It never wrote a letter asking the Army, ‘Can you clean things up?’ Not a thing. Not an inspection. Not a request — not anything.”

Ching, 82, a former Office of Hawaiian Affairs trustee, and Kahaulelio, 80, who was among the Native Hawaiians arrested for trespassing on Kahoolawe in 1977, filed suit against the DLNR in 2014 for failing to monitor whether the Army is complying with the lease.

During the trial Ching and Kahaulelio showed the court how unexploded ordnance and other military debris was left scattered across the trust land, which makes up nearly one-fourth of the 100,000-acre Pohakuloa Training Area west of Hilo between Mauna Kea and Mauna Loa.

The lease requires the Army make every effort to “remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner,” and to “remove or bury all trash, garbage or other waste materials.”

In his court order last year, Chang concluded that DLNR has a duty to “malama ʻaina,” which may have been the first time an American court has used the Hawaiian term meaning “care for the land” in describing the state’s responsibilities.

“For kupunas (elders) to have to come into court to straighten out the state — someone is not doing a good job,” Ching said Thursday.

“Shame,” Kahaulelio added.

Ching and Kahaulelio were supported Thursday by about three dozen Native Hawaiians and Thirty Meter Telescope opponents who conducted a ceremony in front of the courthouse before the hearing.

Opponents, some wearing Protect Kahoolawe Ohana-style bull’s-eye T-shirts with the target instead on the Big Island, said Pohakuloa is yet another area where the government has abused the land.

After the hearing, the group formally called on the TMT partners and board members to divest from the $1.4 billion astronomy project planned for construction near the summit of Mauna Kea.